Whistleblower Protection Act Violation – Protected Disclosure

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7^th Circuit Court of Appeals

Case Name: Adam Delgado v. United States Department of Justice, Bureau of Alcohol, Tobacco Firearms, and Explosives

Case No.: 19-2239

Officials: ROVNER, HAMILTON, and BARRETT, Circuit Judges.

Focus: Whistleblower Protection Act Violation – Protected Disclosure

Petitioner Adam Delgado is a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Since 2014, he has sought relief under the federal Whistleblower Protection Act for retaliation he believes he suffered after reporting his suspicions that another ATF agent may have committed perjury during a federal criminal trial. See 5 U.S.C. §§ 1214(a)(1)(A), 2302(b)(8).

This is Delgado’s second trip to this court. Two years ago, we held that the Merit Systems Protection Board had acted arbitrarily and capriciously in dismissing his administrative appeal under the Act. Delgado v. Merit Systems Protection Bd., 880 F.3d 913 (7th Cir. 2018) (“Delgado I”). We held that Delgado had properly alleged “a protected disclosure” and had exhausted his administrative remedies so that the Board had jurisdiction to evaluate the merits of his claim. See id. at 916, 920. We remanded the case to the Board for further proceedings consistent with our opinion.

On remand, the Board denied relief. (The Board acted only through an Administrative Judge; since early 2017 the Board itself has lacked a quorum.) Delgado again seeks judicial review. Again, we must find the Board has acted arbitrarily, capriciously, and contrary to law. The Administrative Judge (or AJ) paid only lip-service to our decision, ignoring critical holdings and reasoning. Delgado proved that he made a disclosure that was in fact protected under the Act. He also proved retaliation for his protected disclosure, which affected decisions to deny him several promotions. “After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency.” Baez-Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020), citing Negusie v. Holder, 555 U.S. 511 (2009), Gonzales v. Thomas, 547 U.S. 183 (2006), and INS v. Orlando Ventura, 537 U.S. 12 (2002). As in Baez-Sanchez, however, “we have already remanded, only to be met by obduracy.” Id.

We remand once more, but only on the extent of relief for Delgado. The government had the opportunity to offer evidence to support its affirmative defense, that it would have made the same decisions anyway. The government’s showing on its defense fails as a matter of law, at least as to at least one March 2014 promotion denial and another in 2016 that was denied to Delgado even though he was the only candidate on its “best qualified” list. Delgado is entitled at least to pay and benefits as if he had been promoted to GS-14 effective March 4, 2014. Possible further relief will need to be considered on remand.

Vacated in part. Remanded in part.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.